Niemann v. Crosby Development Co.
92 So. 3d 1039
| La. Ct. App. | 2012Background
- Crosby designed and began construction of a house in Mandeville, LA.
- Calmar installed Chinese drywall in the house on April 26, 2006.
- Niemanns purchased the home from Lakeside on November 1, 2007.
- Niemanns filed suit May 24, 2010, alleging breach of warranties and negligence related to the drywall and naming Calmar, Crosby, Lakeside, and insurers.
- Calmar was continuously insured by American Empire Surplus Lines Insurance Company under three CGL policies from July 16, 2004, to July 16, 2007.
- Trial court granted summary judgment for American Empire on the basis that the last policy expired before the alleged damage manifested; Niemanns appealed, arguing trigger theory and ambiguity, but the court sua sponte raised no right of action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Niemanns have a right to sue Calmar/American Empire. | Niemanns argue assignment/subrogation rights via Lakeside; continue damages. | No right of action absent assignment/subrogation; damages predate sale. | No right of action found; dismissal without prejudice; remand for amendment. |
| Whether the trial court properly applied the manifestation trigger theory. | Niemanns dispute trigger theory against insurer. | Trigger theory not controlling for third-party rights to sue. | Court did not reach merits; issue reserved pending amendment. |
| Whether there is an assignment or subrogation from Lakeside to Niemanns. | Subrogation clause in sale deed suggests Niemanns are subrogated to Lakeside’s rights. | No express assignment/subrogation shown in record. | No assignment/subrogation; no right of action against third parties as to pre-sale damages. |
| Whether the record should be supplemented with discovery documents. | Documents show subrogation rights; should be considered. | Discovery responses are not evidence; not in record; supplementation denied. | Supplementation denied; appellate record remains as pleadings and evidence. |
| What is the proper disposition given lack of right of action and potential amendment. | Amend petition to state right of action if possible. | Remand to allow amendment within 30 days; judgment vacated and claims dismissed without prejudice. |
Key Cases Cited
- Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 79 So.3d 246 (La. 2011) (subsequent purchaser rights to third-party damages require assignment or subrogation; continuing-tort theory rejected)
- Howard v. Administrators of Tulane Educational Fund, 986 So.2d 47 (La. 2008) (no right of action can be raised sua sponte; de novo legal standard on right to sue)
- Gisclair v. Louisiana Tax Com’n, 44 So.3d 272 (La. 2010) (record sufficiency for no-right-of-action review)
- OXY USA, Inc. v. Quintana Production Co., 79 So.3d 366 (La. Ct. App. 1st Cir. 2011) (direct action to insurer analyzed with substantive rights against insured)
- Horrell v. Administrators of Tulane Educational Fund, 808 So.2d 363 (La. Ct. App. 1st Cir. 2000) (no right of action analysis and deference to pleadings in proper context)